One of the first things one often “learns” when delving into the literature on restorative justice (victim-offender mediations, restorative justice conferences, circles, etc.) is that it is something radically different from punishment. At the NSfK Research Seminar 2023, I argued two things that contradict with this view. First, that the idea of a dichotomy between restorative justice and punishment is factually problematic. Second, that promoting restorative justice as a new legal form of punishment could be reasonable from a consequentialist point of view—at least if low recidivism, low economic cost, and victim well-being are considered as positive consequences of crime management.
The abovementioned idea of a dichotomy is factually problematic because restorative justice contains alternative punishments, which has also been argued by Kathleen Daly. This is something I have experienced myself as a victim-offender mediator for the Danish police. It is often an emotional and painful experience for offenders to be confronted face-to-face with victims, family members, friends, and others who have been hurt by their crimes. Furthermore, agreements formulated by the participants at the restorative justice meetings may require actions from the offenders that can also be burdensome. Of course, the pain varies from offender to offender, but that is also the case for other forms of punishment. The pain of restorative justice may, however, at least if it takes the form of reintegrative shaming, be more constructive than other potentially more stigmatizing forms of punishment such as prison.
Another reason why the idea of a radical dichotomy between restorative justice and punishment is problematic is that retributive court processes sometimes include restorative justice-like elements. For example, I was responsible for conducting an impact assessment of the International Criminal Court’s (ICC’s) Access to Justice Project in Uganda: a project that included restorative justice-like elements in the form of feedback meetings, video screenings, and radio listening clubs in the local victims’ communities affected by the crimes of Dominic Ongwen (Gade 2021a). Dialogues about what happened and how the crimes should be addressed were an important part of the ICC processes, and the processes shared similarities with sentencing circles and restorative justice without offender participation.
The relationship between restorative justice and punishment does, of course, depend on what punishment is. There is no consensus on this. In fact, I have recently developed a new multidimensional punishment framework that makes it possible to distinguish systematically between more than 500 possible positions on the nature of punishment (Gade 2021b). In connection with this, my point is that many concrete cases of restorative justice constitute de facto punishment according to multiple of these positions as the cases fulfil all the conditions that the positions require for something to be punishment.
Restorative justice is normally presented as ‘an alternative to punishment’ or ‘a supplement to punishment,’ but seldomly as a form of punishment itself. However, as explained above, restorative justice is in fact an alternative form of punishment according to many positions on what punishment is. Furthermore, compared to current alternative punishments like electronic monitoring and community service, restorative justice has the advantage that it puts a lot of focus on helping the victims of crimes to move on. Many studies have shown that restorative justice has positive effects—not only in relation to victim well-being, but also when it comes to recidivism and economic cost.
In the context of a widespread punitive turn, restorative justice could be promoted by presenting it for what it arguably is: an alternative, and in many cases, constructive form of punishment where offenders are truely held accountable for what they have done, and where there is a focus on repairing the harm caused by crime (Gade 2022). Restorative justice is to be tough on crime, but in a constructive way. From a consequentialist point of view, restorative justice ought to be used as punishment in cases (and only in cases) where the best available evidence shows that it has better effects than other forms of punishment.
References
Gade, C. (2021a). Impact assessment of the International Criminal Court’s Access to Justice project in Uganda: Final Report. Aarhus: Aarhus University.
Gade, C. (2021b). Is restorative justice punishment? Conflict Resolution Quarterly 38(3): 127-155.
Gade, C. (2022). Promoting restorative justice as de jure punishment: A vision for a different future. The International Journal of Restorative Justice 5(1): 37-54.
Christian Gade is an Associate Professor of Human Security and Anthropology at Aarhus University. He is the Director of Aarhus Centre for Conflict Management and the Coordinator of the international Master’s degree programme in Human Security.